Com. v. Mitchell

• Decision Date: 29 July 2005
• Citation: 831 N.E.2d 890,444 Mass. 786
• Parties: COMMONWEALTH & another<SMALL><SUP>1</SUP></SMALL> v. Alicia MITCHELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

831 N.E.2d 890

444 Mass. 786

COMMONWEALTH & another¹ v. Alicia MITCHELL.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 5, 2005.

Decided July 29, 2005.

Paul B. Linn, Assistant District Attorney, Boston (Ian Polumbaum, Assistant District Attorney, Northampton, with him) for the Commonwealth.

Paul R. Rudof, Committee for Public Counsel Services, for the defendant.

Kerri E. Tierney, South Boston, for Police Department of Boston, was present but did not argue.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

GREANEY, J.

This case requires us to decide whether a judge in the Superior Court properly allowed the defendant's ex parte motions for issuance of summonses, under Mass. R.Crim. P. 17(a)(2), 378 Mass. 885 (1979),² compelling the production, prior to trial, of documents pertaining to her defense held by third parties, and whether the judge properly denied the motion of the Commonwealth for disclosure of the defendant's motions. We conclude that, in rare instances, an ex parte motion may be an appropriate procedure by which to obtain a court order compelling the pretrial production of "books, papers, documents, or other objects," Mass. R.Crim. P. 17(a)(2), in the custody of a third party. There is insufficient information in the record, however, to assess whether this case presents such a rare instance. Accordingly, we direct the single justice on remand to vacate the order denying the Commonwealth's motion for disclosure of the defendant's ex parte motions, recall the summonses issued based on the defendant's motions, stay the orders allowing the motions, and remand the case to the Superior Court for further proceedings.³

The dispute arose in the following manner. On July 2, 2003, a Suffolk County grand jury returned three indictments charging the defendant with assault by means of a dangerous weapon (one indictment) and intimidating a witness (two indictments). On September 30, 2004, the defendant filed five ex parte motions seeking court orders in the form of summonses⁴ directed to the record keepers of five third-party entities, including the police department of Boston (BPD) and the Boston Housing Authority (BHA), requiring the pretrial production of documents in their custody. In a separate motion, the defendant sought a protective order for the impoundment of her motions and supporting affidavits. On October 1, a judge in the Superior Court allowed the defendant's motions for issuance of the summonses.

On October 13, the Commonwealth (which may have become aware of the defendant's motions, despite their ex parte nature, by checking the court docket) filed a motion for disclosure of the ex parte motions, and requested as well that any orders for the production of documents based on the motions be vacated. The judge held a hearing at which he heard arguments from both the defendant and the Commonwealth. The following day, the judge denied the Commonwealth's motion and allowed the defendant's motion for a protective order and impoundment of her motions for issuance of summonses and the accompanying affidavits. The judge's written endorsement denying the Commonwealth's motion indicated his understanding that he was "authorized by [Mass. R.Crim. P. 14, 378 Mass. 874 (1979),] to limit disclosure of matters involving [r]ule 17 as was originally set out in [the defendant's] ex parte motion." On October 27, the five summonses for production of records requested by the defendant issued.⁵

On November 8 and 10, the BHA and the BPD, respectively, filed motions to reconsider the orders directed to them on the grounds that the orders were overly broad and included requests for privileged materials.⁶ The BHA (in its motion) and the BPD (at a hearing) also objected that, as the result of the ex parte procedure by which the summons were issued, no opportunity to oppose the summonses, before their issuance, had been afforded. At a hearing on December 8, before a different Superior Court judge, the BHA and the BPD agreed that the court should refrain from addressing their substantive concerns so that their procedural objections to the ex parte motions could be pursued. The judge then denied in part their motions to reconsider ("after consultation with [the judge who allowed the defendant's ex parte motions] and in his name" [emphasis in original]), and stayed her orders to allow time for an appellate court to resolve the ex parte issue.

On January 11, 2005, the Commonwealth and the BPD filed a petition with a single justice of this court, challenging the general authority of a judge to order the issuance of summonses requiring third-party records to be produced prior to trial on the basis of an ex parte motion.⁷ The single justice reserved and reported the question to the full bench. The Commonwealth asserts that the challenged orders in this case have improperly allowed the defendant to use rule 17 as a "method for obtaining secret discovery, rather than as a method to obtain trial evidence available to both parties." The defendant responds that judges must have discretion to permit ex parte motions by criminal defendants to obtain unprivileged third-party records in order to "preserve a defendant's constitutional right to conduct her own independent investigation unfettered by notice to and potential interference by the Commonwealth." We now address the propriety of a defendant seeking and obtaining a court-issued summons for the production of documents prior to trial by means of an ex parte motion.⁸

1. The foundation for deciding this case rests in our earlier decisions in Commonwealth v. Lam, 444 Mass. 224, 827 N.E.2d 209 (2005) (Lam), and Commonwealth v. Lampron, 441 Mass. 265, 806 N.E.2d 72 (2004) (Lampron).⁹ In Lampron, supra, we clarified the procedure that must be followed when documents, books, records, or other evidentiary material held by a third party are sought by a criminal defendant prior to trial. We adopted in Lampron the standard applicable to such requests under the corresponding Federal rule, Fed.R.Crim.P. 17, from which our rule is taken. Under Fed.R.Crim.P. 17(c), when filing a motion for an order compelling a third party to produce documents, or other evidentiary material, prior to trial, the moving party "must establish good cause, satisfied by a showing `(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application [was] made in good faith and [was] not intended as a general "fishing expedition."'" Id. at 269, 806 N.E.2d 72, quoting United States v. Nixon, 418 U.S. 683, 699-700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Lampron established that a summons directing the pretrial production of documents must be sought by motion, accompanied by a supporting affidavit containing a factual showing that the above requirements are met.¹⁰ The affidavit may contain hearsay, so long as the affidavit identifies the source of the hearsay and a judge deems it reliable, but assertions of potential relevancy and of conclusory statements will not suffice. See id. at 269, 271, 806 N.E.2d 72. We repeated in Lampron that rule 17(a)(2) is not to be used as a means to explore the availability of potential evidence or otherwise to subvert the pretrial discovery provisions of rule 14.¹¹ The rule's primary purpose is to avoid delay caused by the often onerous tasks (on the part of the record holder) of responding to a summons for documents and (on the part of the defendant and defense counsel) of examining the documents and evaluating their usefulness at trial. The issuance of a summons pursuant to a rule 17(a)(2) motion is reserved to the sound discretion of the judge. See id. at 271, 806 N.E.2d 72, citing Commonwealth v. Wanis, 426 Mass. 639, 642, 690 N.E.2d 407 (1998).¹²

More recently, in our Lam opinion, we recognized the Commonwealth's interest in ensuring that rule 17(a)(2) is not used as a discovery tool, and its related interests in protecting its own witnesses and in guarding against any undue delay of the trial occasioned by multiple, or lengthy, requests for documents. We concluded that, in the usual case, the Commonwealth has standing to challenge a defendant's motion for production of documents prior to trial. See Lam, supra at 229, 827 N.E.2d 209. "A judge's task in reviewing a defendant's request for rule 17(a)(2) summonses is to balance the defendant's right to mount a defense with the Commonwealth's right to prevent unnecessary delay of the trial and unwarranted harassment of witnesses and third parties." Id. at 229-230, 827 N.E.2d 209. A judge hearing a rule 17(a)(2) motion must evaluate whether the Lampron requirements of relevance, admissibility, necessity, and specificity have been met, or whether the defendant's motion constitutes a disguised attempt to undermine rule 14 by launching an improper "fishing expedition." In most cases, input from the Commonwealth will be of real value to the judge. See Lam, supra at 229, 827 N.E.2d 209.

2. Neither the Lampron nor Lam decision dealt with an ex parte motion for issuance of a rule 17(a)(2) summons for the production of documents prior to trial.¹³ As discussed above, Lampron points out that we are guided by Federal authority under Fed.R.Crim.P. 17(c). There is a body of Federal decisional law on the disposition of ex parte motions for subpoenas duces tecum under Fed.R.Crim.P. 17(c), but it is considerably divided. Some Federal District Courts have held that ex parte motions may never be justified under rule 17(c). See, e.g., United States v. Najarian, 164 F.R.D. 484, 488 n. 2 (D.Minn.1995); United States v. Hart, 826 F.Supp. 380, 381 (D.Colo.1993); United States v. Urlacher, 136...